Hetu vs Megh Singh and Another

Kuldip Singh, J.—This revision has been directed against the order, dated 18.10.2010, passed by learned Additional District Judge (FTC), Kullu, in CMP No. 39/10 titled Hetu v. Megh Singh

The facts in brief are that Civil Suit No. 88/07 was decreed by the learned Civil Judge (Senior Division), Lahaul & Spiti at Kullu on 18.11.2009. The Petitioner filed an appeal against the Judgment, decree dated 18.11.2009, which was barred by time. He filed an application for condonation of delay in filing the appeal, which was contested by Respondent No. 1. The learned Additional District Judge (Fast Track Court), Kullu, dismissed the application for condonation of delay on 18.10.2010, which has been assailed in revision petition.

I have heard the learned Counsel for the parties and have also gone through the record. It has been contended on behalf of the Petitioner that appeal was filed on 16.2.2010 alongwith condonation of delay application. The Petitioner has proved sufficient cause in filing the appeal, which was barred by time, by leading evidence. It has been submitted that court below has drawn wrong inference from the evidence, which resulted into erroneous decision. The illness of the Petitioner and the evidence to this effect has not been properly appreciated. The court below has not exercised jurisdiction properly in dismissing the application for condonation of delay. The valuable rights of Petitioner are involved in the dispute. The Petitioner has been non-suited in the appeal merely on the ground of limitation. The court below has taken narrow view in not condoning the delay. The learned Counsel for Respondent No. 1 has supported the impugned order, none appeared on behalf of Respondent No. 2 despite service.

The suit was decided by the learned Civil Judge (Senior Division) on 18.11.2009, the copy was applied on 3.12.2009, it was attested on 29.12.2009 and was delivered on 4.1.2010. The appeal was filed on 16.2.2010. The subordinate courts were closed on account of winter vacation with effect from 18.1.2010 to 11.2.2010. On 17.1.2010, it was Sunday, on 12.2.2010 to 14.2.2010, the subordinate courts were closed on account of Maha Shivratri, Second Saturday and Sunday.

In the application for condonation of delay, it has been stated that Petitioner could not come to collect the copy before 4.1.2010, as he was suffering from gouts and he is an old man. He could not contact his advocate for filing the appeal due to illness. The Petitioner contacted his advocate on 15.1.2010. The perusal of memorandum of appeal indicates that the same was prepared on 16.1.2010 and the application for condonation of delay on 15.1.2010. The difference of date of one day in preparing memorandum of appeal and application for condonation of delay is not material in view of real controversy of condonation of delay.

The fact remains that condonation of delay application and appeal were ready on 16.1.2010. The Appellant thereafter was not required to do any substantial act for filing the appeal, which was actually filed on 16.2.2010 by the counsel of the Petitioner. The Petitioner could explain the delay in the application or in the appeal till these were prepared. It appears that on account of winter vacation in the subordinate courts, the papers remained with the counsel, which he filed after one day of opening of the courts on 16.2.2010. In the facts and circumstances of the case, the Petitioner cannot be blamed for late filing of the appeal even though the papers of the appeal were ready on 16.1.2010.

The Petitioner in his statement has stated that he could not file the appeal as he was suffering from asthma for the last six years. He could not file the appeal on account of his illness. The medical certificates produced by the Petitioner are of period subsequent to filing of the appeal, and, therefore, those are not relevant. The appeal after excluding the time from 3.12.2009 to 29.12.2009 spent for obtaining the copies was barred by 34 days when it was filed on 16.2.2010. The appeal would have been hardly about three days late, had it been filed on 16.1.2010. The substantial rights of the Petitioner are involved in the litigation. The suit is for specific performance of contract of immovable property, which has been decreed. The learned court below has taken narrow view in not condoning the delay. Therefore, I am satisfied that Petitioner has shown sufficient cause for condonation of delay in filing the appeal against the Judgment, decree dated 18.11.2009. The impugned order is thus not sustainable.

The result of above discussion, the revision is allowed. The order dated 18.10.2010, passed by learned Additional District Judge (FTC), Kullu, in CMP No. 39/10 titled Hetu v. Megh Singh and Anr.is set-aside. The delay in filing the appeal against the Judgment, decree dated 18.11.2009, passed by learned Civil Judge (Senior Division), Lahaul & Spiti at Kullu, in Civil Suit No. 88/07, is condoned. The parties through their counsel are directed to appear before the learned lower appellate court on 18.7.2011. The learned lower appellate court is directed to decide the appeal in accordance with law. The record be sent back to the learned lower appellate court immediately so as to reach well before the date fixed.